Guest Blogger – Rochelle Reback 

In light of the prevalence of ESI discovery in white collar cases it is ironic that an important principle regarding electronic discovery is developed for us in an indigent's drug smuggling case. But, we'll take it! In United States v. Stirling ( Download Altonaga order granting new trial(1)) yesterday, District Judge Altonaga found that notwithstanding the government’s technical compliance with its ESI discovery obligations under Federal Rule of Criminal Procedure 16(a)(1)(B) by furnishing an exact replica of defendant's hard drive to the defense, the government's electronic discovery dump in this case so seriously impaired the defendant’s trial strategy that there should be a new trial. Not known to defendant's attorney, on the disclosed and mirrored hard drive were some of defendant's Skype chat logs which the government's forensic expert was able to open and view only by using a specialized computer program. The Skype chats were not visible in any other way. But neither the existence of the Skype chats on the hard drive, nor the expert's employment of the specialized program to view them were disclosed to the defense until after defendant testified. In rebuttal the prosecutor called their expert and used these Skype chats to impeach defendant to devastating effect as they contradicted much of his trial testimony. Stirling was convicted.

Under Federal Rule of Criminal Procedure 33, Judge Altonaga ordered a new trial in "the interest of justice," even though the government had warned the defense that if Stirling took the stand and testified falsely, there was [unidentified] evidence on the computer which the Government would use in its rebuttal to impeach him. Finding that this was not like the cases cited by the government where courts have consistently refused to require the government to identify exculpatory or inculpatory evidence within a larger mass of disclosed evidence, Judge Altonaga wrote that the standard of Federal Rule of Civil Procedure 34(b)(2)(E)(ii) should also apply in criminal cases and the government should be required to produce ESI in a "reasonably usable form." She found the government's "technical compliance with its discovery obligations under Federal Rule of Criminal Procedure 16 (a)(1)(B) by the furnishing of an exact replica of the hard drive" to not be enough. The government "never told defense counsel that incriminating Skype chats could be extracted from the disk or that they even existed." Judge Altonaga agreed with defense counsel that "production of something in a manner which is unintelligible is really not production." She ruled that "If, in order to view ESI, an indigent defendant such as Stirling needs to hire a computer forensics expert and obtain a program to retrieve information not apparent by reading what appears in a disk or hard drive, then such a defendant should so be informed by the Government, which knows of the existence of the non-apparent information. In such instance, and without the information or advice to search metadata or apply additional programs to the disk or hard drive, production has not been made in a reasonably usable form. Rather, it has been made in a manner that disguises what is available, and what the Government knows it has in its arsenal of evidence that it intends to use at trial."

One has to wonder if the "interest of justice" result would have been the same if the defendant in this case was not indigent and did not have to seek the court's assistance for experts and more sophisticated computer resources to unlock the hidden mysteries of the electronically stored information.

(reback) –(with hat tips to Donna Elm and Robert Godfrey)